State v. Ojezua, 2016 Ohio 2659

On July 8, 2014, a maroon Hummer under surveillance by R.A.N.G.E. detectives was stopped for traffic violations; Victor Ojezua was the front-seat passenger.
Deputies Zollers and Shiverdecker (marked cruisers) conducted the stop at detectives’ request; detectives were conducting a narcotics/gun task-force investigation.
Zollers observed several furtive movements by Ojezua while following the Hummer; Zollers relayed information to Shiverdecker.
Zollers learned the driver had prior felonious-assault and drug convictions and that both occupants had prior narcotics/weapons contacts; the driver consented to a vehicle search.
Shiverdecker testified he asked Ojezua for consent to search, received verbal consent, then performed a pat-down, felt a lumpy object in the groin area, smelled marijuana, handcuffed Ojezua, and recovered crack cocaine and marijuana.
The trial court suppressed the evidence, finding no clear proof of consent and that the pat-down lacked reasonable, articulable suspicion; the State appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved Ojezua consented to a search of his person	Shiverdecker asked for and received verbal consent before the pat-down	Ojezua and the video show no clear request or clear consent; encounter was too brief to establish consent	Trial court’s finding that there was no clear, positive evidence of consent is supported by the record (State lost on consent)
Whether officer had reasonable, articulable suspicion to conduct a pat-down (Terry frisk)	Collective facts (furtive movements, task-force investigation, driver’s prior violent/drug record, occupants’ prior contacts) justified a frisk	No sufficient individualized suspicion that Ojezua was armed and dangerous	Court held the totality of circumstances gave Shiverdecker reasonable, articulable suspicion; pat-down lawful (State prevailed on this ground)

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of consent determined from totality of circumstances)
Terry v. Ohio, 392 U.S. 1 (1968) (police may conduct limited frisk for officer safety on reasonable suspicion that suspect is armed)
State v. Bobo, 37 Ohio St.3d 177 (1988) (furtive movements are a factor but not alone sufficient for frisk)
State v. Evans, 67 Ohio St.3d 405 (1993) (frisk permitted when officer reasonably believes suspect is armed and dangerous; association of drug activity with weapons)
State v. Robinette, 80 Ohio St.3d 234 (1997) (State bears burden to prove consent was freely and voluntarily given)
Maumee v. Weisner, 87 Ohio St.3d 295 (1999) (officer can rely on dispatch or fellow-officer information; state must justify reasonable suspicion underlying dispatch)
State v. Posey, 40 Ohio St.3d 420 (1988) (State must show by clear and positive evidence that consent was freely and voluntarily given)